Opinion
No. 1-14-3577
11-16-2016
RAMZIA STEPHAN, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY, Defendant-Appellee.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No. 10 L 9731 The Honorable Cassandra Lewis, Judge Presiding. JUSTICE PUCINSKI delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment.
ORDER
¶ 1 Held: The trial court did not abuse its discretion in sustaining the CTA's objections to the admission of its Rules on the grounds of foundation, hearsay, and relevance and in barring the admission of the CTA's Rules into evidence at trial. (1) The plaintiff forfeited her argument where she did not cite to any authorities in support of her argument. While the plaintiff did cite to portions of the CTA driver's testimony in the record, the bus driver's testimony failed to lay a sufficient proper foundation as to the authenticity of the CTA's Rules. (2) The plaintiff forfeited any review of the admission of the Rules as a party admission. (3) The Rules were not relevant where they did not establish any duty because they do not have the force of law. Also, the jury's questions about the Rules, sent to the trial court during deliberations, did not demonstrate that the Rules were relevant where the jury's questions concerned (a) checking the interior of the bus in the mirror and (b) procedure after a passenger has fallen, which were irrelevant to the bus operator's driving and braking at the time of the accident. (4) The plaintiff forfeited any review of prejudice to her based on the court's decision not to admit the CTA's Rules where she did not provide sufficient argument or authority.
¶ 2 BACKGROUND
¶ 3 Plaintiff, Ramzia Stephan, filed suit against defendant, Chicago Transit Authority (CTA) on August 24, 2010 for personal injuries arising from an allegedly negligent sudden braking of a CTA bus on March 8, 2010. At the time of the incident, plaintiff was 63 years old. The bus on which the incident occurred was equipped with surveillance cameras and the cameras recorded plaintiff's fall. The jury saw the video. The CTA in its brief states that the video shows, among other things, that plaintiff "reached for the handrail on the left side of the bus using the same hand in which she was carrying her purse. Plaintiff's hand missed the handrail as she stepped toward the front of the bus and she immediately fell to the floor." This is not disputed by plaintiff. According to the record on file, during discovery the CTA produced to plaintiff copies of the CTA's Standard Operating Procedures (SOP's) 7003 and 7007 (CTA page numbers 1-10) and the CTA's Bus System Rules (Rules) B4.6.1, 6.2, and 6.3 (CTA page number 11). If the CTA provided complete copies of the SOP's or Rules, that is not evident from the record. SOP's and Rules are separate documents and both are part of the CTA's internal rules. ¶ 4 Plaintiff filed a motion in limine (#36) to introduce the CTA's "internal policies and rules." Plaintiff sought to be allowed to introduce this evidence during cross-examination, urging that no argument would be made at trial that the CTA's Rules carry the force of law and that such evidence would not discourage future remedial measures by the CTA, citing to Bulger v. Chicago Transit Authority, 345 Ill. App. 3d 103 (2003). There is nothing in the record to indicate that the court granted or denied #36 or any other part of plaintiff's motion in limine before trial. ¶ 5 The CTA also filed several motions in limine, including #23: "There should be no mention of the CTA's Rules or Standard Operating Procedures." There is nothing in the record to indicate that the court granted or denied CTA's #23, although there is an indication that the court did grant or deny some of its other items before trial. ¶ 6 Plaintiff's expert witness, Dr. Grant Bunker, testified at trial. However, plaintiff did not include his testimony in the record. The CTA attached his direct examination to its response brief. As a result of plaintiff's failure to provide Dr. Bunker's testimony we are unable to consider it. It is plaintiff's responsibility as the appellant to provide a complete record and that has not been done here. Furthermore, material attached to a brief that is not part of the record cannot be considered either. See Dopp v. Village of Northbrook, 257 Ill. App. 3d 820, 824 (1994). ¶ 7 The CTA called Thomas Teper (Teper), the bus driver who operated the bus involved in the incident, and he testified to his familiarity with the CTA's Rules. Plaintiff's counsel asked Teper about Rule B-25. The CTA objected based on foundation and relevance. The following colloquy took place:
"Parad: (Plaintiff's counsel) Ok, your Honor, I will read it from this document but I ask him - I lay the foundation. I ask what it is, does he recognize it. He said he's familiar with that book rule. I'm going now to the next question. There's nothing else by way of foundation.
Court: My understanding of evidence is that you can't read from a document that's not admitted.
Parad: Ok. I will do it different.
Parad: To your knowledge the bus rule book requests drivers to do whatever they can to be sure that elderly and handicapped -
Simmons: Objection, your Honor.
Court: Sustained.
Parad: I am asking a question. I'm not asking him the rule. Your Honor I can't ask a question?
Court: You can't read from a document that's not in evidence.
Parad: Ok. Your Honor, I'll move into evidence this document.
Simmons: Objection. Hearsay, foundation.
Court: Sustained. You can attempt to lay the foundation but thus far the foundation has not been properly laid.
Parad: So you recognize this document I showed you marked 1. Okay. You review it because it's a part of the system. You said you read it before, correct?
Teper: I did
Parad: You're familiar with the rules which contain in that book?
Teper: In general, correct.
Parad: You are - were given that book by the CTA?
Teper: I was
Parad: So it was in your possession and you reviewed the - as bus driver you have to follow the rules which are in this - in that book?¶ 8 It appears from the above exchange that plaintiff was attempting to introduce into evidence the CTA Rules, and then to specifically ask about Rule B-25, which apparently had to do with passengers who are elderly and/or disabled. ¶ 9 Plaintiff's counsel asked Teper if he got the Rules from the CTA, if he was familiar with it and if he had to follow the rules, to which he answered yes. ¶ 10 The CTA's objection based on foundation, hearsay and relevance was sustained. ¶ 11 Teper also testified that the bus was in good mechanical condition, the tires and brakes were good, a bus weighs about 15 tons, the conditions that day were clear and dry, the incident happened at about 2:00 p.m., the bus was not crowded, there was no emergency situation as he approached the Granville and Western stop, however, there were parked cars at the curb before the stop, the blocks are short, there were passengers waiting at the stop so it was a scheduled stop, traffic was light, he started slowing the bus down about 100 yards from the stop, there was no sudden or jerking deceleration of the bus, plaintiff told him "that she had missed the pole," plaintiff fell once again after she was off the bus after which he exited the bus and started accident procedures, for a 40-foot bus when the speed is 30 miles per hour that the standard braking distance is 150 feet however, he was not going 30 miles an hour. During cross examination Teper testified that, according to the video, he was "approximately 300 feet" away from the stop when he began applying the brakes, and that he was not going 30 miles an hour because the "blocks are so short." At this point the jury was shown the video provided by the CTA which recorded the activity in and around the bus and also specifically showed when the brakes were applied. Teper testified that he was not tapping the brakes and that if he had been the video would have shown "that light would have kept going on and off." He testified instead that the brake light on the video would stay on the entire time he was braking, and that the stop he made was a "cruise to the bus stop," the brakes were in good working order, and the condition of the brakes wasn't causing any "jerking or anything like that." ¶ 12 Teper also testified that he received the SOP's from the CTA, that he looked at, recognized and studied them. Plaintiff did not move the SOP's into evidence. ¶ 13 The court instructed the jury pursuant to Illinois Pattern Instruction (IPI) 100.01 as follows:
Teper: Correct...
Parad: If I -
Teper: ...to the best of my ability.
Parad: Right, I understand. So, your Honor, I move into evidence this because I think foundation is laid. He's very familiar with this rule.
Simmons: I will continue my objection based on foundation, hearsay and relevance.
Court: Objection at this point will be sustained."
"A common carrier is not a guarantor of its passengers' safety, but it has a duty to its passengers to use the highest degree of care consistent with the mode of conveyance used and the practical operation of its business as a common carrier by bus. Its failure to fulfill this duty is negligence."¶ 14 During deliberations, the jury submitted the following two-part question to the court:
"We would like to know what CTA's S.O.P. is regarding how often an operator must look in his mirrors within the bus and if that varies depending on his activity. We would
also want to see the S.O.P. regarding what an operator is supposed to do in the event a passenger falls."¶ 15 In response to these questions, the trial court stated: "You have all the evidence in this case." ¶ 16 The jury returned three verdict forms in favor of the CTA: 1) "We, the jury, find for the Defendant, Chicago Transit Authority, and against Plaintiff, Ramzia Stephan;" 2) "Was plaintiff contributorily negligent in causing her injury? Yes;" and 3) "If yes, was plaintiff's contributory negligence more than 50% of the proximate cause of her injuries? Yes." A final judgment was entered in favor of the CTA based on the jury verdict. Plaintiff appealed.
We note that the video was admitted into evidence by stipulation and was viewed by the jury at trial. A disk is part of the record on appeal, however, as the CTA notes in its brief, the video submitted to this court appears to be "corrupted" and is incapable of being viewed. The CTA did offer to make a good copy available to this court. Since plaintiff's appeal does not challenge the jury's verdict but is, rather a challenge to the circuit court's evidentiary rulings it is not necessary for this court to review the video as it does not impact on our analysis.
Rule B-25 is not in the record. --------
¶ 17 ANALYSIS
¶ 18 We will begin our analysis with an understanding of what is and what is not in the record. Plaintiff has included only the testimony of Teper, the bus driver, in the record. She has not included the entire CTA Standard Operating Procedure, nor did she move the entire SOP into evidence. While she does attach those specific SOP's relating to proper braking to documents in the record, there is no evidence that she moved those specific SOP's into evidence. She has included only 3 CTA Bus System Rules, discussed more fully below, and none of them concern any specifics about proper braking. As a consequence we cannot consider the entire CTA SOP; and, we will not consider the specific CTA SOP's regarding proper braking, the entire CTA Bus System Rule Book, or Dr. Bunker's testimony. Because CTA Bus System Rules B4.6 - B4.6.3 are in the record we will consider only whether the court erred in denying entry of these three Rules into evidence. They read:
"B4.6 Safe Operation of Buses. B4.6.1 Operators must look ahead and be constantly alert for any condition which may cause injury or damage
and be ready to bring their bus to a safe and smooth stop. B4.6.2 Operators must keep at a safe distance and must operate at a speed which will enable a safe stop should a vehicle ahead make a sudden stop. Collision will not be excused. B4.6.3 Operators must accelerate gradually, stop smoothly and operate in such a manner as to avoid discomfort to passengers."¶ 19 On appeal, plaintiff argues that the trial court erred in barring admission of the CTA's Rules and SOP's. As noted above, there is nothing in the record to indicate that she moved the CTA's SOP's into evidence so we will not consider that argument. ¶ 20 The parties first disagree as to the standard of review. Plaintiff argues that the standard of review should be de novo because the facts are undisputed and the trial court's exclusion of the evidence was based solely on its interpretation of case law. Meanwhile, the CTA argues that the proper standard of review is abuse of discretion. We agree with the CTA. "The trial court's decision regarding whether to admit evidence is reviewed for abuse of discretion." Bulger v. Chicago Transit Authority," 345 Ill. App. 3d 103, 110 (2003).
¶ 21 A. CTA Bus System Rule Book
¶ 22 First, we will consider the CTA's Bus System Rule Book. Plaintiff argues that the foundation for this was properly laid by Teper, the bus driver who got it from the CTA and was familiar with it and agreed he had to follow the rules. The CTA argues that plaintiff waived this issue because it is undeveloped, cursory and conclusive. In her brief plaintiff refers to the Rules and the SOP's interchangeably. While both are internal rules, each is a separate document. Plaintiff did attempt to lay a foundation for the Rules through the testimony of Teper. The CTA objected on the basis of hearsay, foundation and relevance. ¶ 23 We agree with the CTA that the trial court sustained the CTA's objections to admission of the Rules on the grounds of foundation, hearsay, and relevance, and not on an interpretation of case law. The admission of evidence is within the sound discretion of a trial court, and a reviewing court will not reverse the trial court absent a showing of an abuse of that discretion. Snelson v. Kamm, 204 Ill. 2d 1, 33 (2003) (citing Gill v. Foster, 157 Ill. 2d 304, 312-13 (1993)). An abuse of discretion occurs only when the trial court's ruling is arbitrary, fanciful, unreasonable, or when no reasonable person would adopt the trial court's view. Roach v. Union Pacific R.R., 2014 IL App (1st) 132015, ¶ 20 (citing People v. Cerda, 2014 IL App (1st) 120484, ¶ 183; Matthews v. Avalon Petroleum Co., 375 Ill. App. 3d 1, 9 (2007)). We further note that the case relied on by plaintiff, Bulger v. Chicago Transit Authority, 345 Ill. App. 3d 103 (2003), applied an abuse of discretion standard. See Bulger, 345 Ill. App. 3d at 110 (citing Gill v. Foster, 157 Ill. 2d 304, 312-13 (1993)). We thus review the trial court's ruling for an abuse of discretion. ¶ 24 Plaintiff argues that the Rules should have been allowed into evidence because: (1) plaintiff laid a proper foundation through the testimony of the driver, Teper; (2) the Rules constituted a statement by a party opponent; and (3) the Rules were relevant to establish negligence. Plaintiff also argues that she was substantially prejudiced by the trial court's exclusion of the Rules. We repeat, there are only three Rules in the record. We address each argument in turn.
¶ 25 I. Foundation
¶ 26 Plaintiff maintains that Teper's testimony properly authenticated and identified the Rules. Plaintiff argues that Teper testified to the following: he was familiar with the Rules; he received copies as part of his ongoing training with the CTA "all of the time;" copies were "posted all over the [CTA's] garage;" he read them more than ten times and continues to review them "a couple times a year"; he must study them to pass CTA training tests; and that he recognized the Rules he was presented in court to be the same book from his CTA training. Plaintiff maintains that this testimony was sufficient to authenticate the Rules and lay the foundation for their admission. ¶ 27 The CTA replies that plaintiff provides no facts or legal arguments in support of her position and that the trial court's ruling should be affirmed for this reason alone. ¶ 28 Plaintiff cites to no case law to support her bare argument. Rule 341(h)(7) requires an appellant to include in its brief an "[a]rgument, which shall contain the contentions of the appellant and the reasons therefore, with citation of the authorities and the pages of the record relied on." Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008). "[I]t is well settled that a contention that is supported by some argument but does not cite any authority does not satisfy the requirements of Supreme Court Rule 341(h)(7), and bare contentions that fail to cite any authority do not merit consideration on appeal." In re Marriage of Johnson, 2011 IL App (1st) 102826, ¶ 25. ¶ 29 While plaintiff does cite to portions of the record for Teper's testimony, we determine that Teper's testimony was insufficient to lay a proper foundation for the CTA's Rules. "To lay an adequate foundation for a document through a witness, the witness must show he has 'sufficient personal knowledge' to confirm its authenticity." Piser v. State Farm Auto Insurance Co., 405 Ill. App. 3d 341, 349 (2010). Teper was the CTA driver of the bus at issue in the case. He testified that he was familiar with the CTA's Rules and saw them posted. Teper did not have sufficient personal knowledge of the CTA's Rules that would confirm their authenticity, and certainly not at the time of the event. He testified, for example that he did not know that a new Rule book was issued by the CTA in 2010. Plaintiff did not present any other witness who would have had sufficient personal knowledge to confirm their authenticity. Without proper authentication and identification of a document, the proponent of documentary evidence has not provided a proper foundation and the document cannot be admitted into evidence. Anderson v. Human Rights Comm'n, 314 Ill. App. 3d 35, 47 (2000). We therefore conclude that the trial court did not abuse its discretion in sustaining the CTA's objection and barring the Rules based on lack of foundation.
¶ 30 II. Hearsay
¶ 31 Plaintiff also argues that the Rules were admissible as non-hearsay opposing party admissions or statements under Illinois Rule of Evidence 801(d)(2). See Ill. R. Evid. 801(d)(2) (eff. Jan. 1, 2011). ¶ 32 Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Ill. R. Evid. 801(c) (eff. Jan. 1, 2011). One of the exceptions to hearsay is a statement by a party-opponent under Rule 801(d)(2). To fall under this exception, the evidence must qualify as follows:
"Statement by Party-Opponent. The statement is offered against a party and is (A) the party's own statement, in either an individual or a representative capacity, or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy, or (F) a statement by a person, or a person on behalf of an entity, in privity with the party or jointly interested with the party." Ill. R. Evid. 801(d)(2) (eff. Jan. 1, 2011).¶ 33 Plaintiff fails to cite to any authority in support of her argument besides Rule 801. Illinois Supreme Court Rule 341(h)(7) requires an appellant to include in its brief an "[a]rgument, which shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on." Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008). As such, plaintiff has forfeited review of any error in the court's sustaining the CTA's objection based on hearsay. See Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013). ¶ 34 Furthermore, even if we did agree that the entire CTA Bus System Rule Book is admissible as a statement by a party opponent, the only actual Rules submitted during discovery by the CTA and in the record do not include Rule B-25, so that particular rule is clearly not a statement by a party opponent. And, plaintiff did not provide a copy of the entire CTA Bus System Rule Book in the record so we have no way to properly evaluate this claim. It is plaintiff's burden as the appealing party to provide this court with a sufficient record. Without it this court will construe any doubts that arise from an incomplete record against plaintiff. See Foutch v. O'Bryant, 99 Ill. 2d 389, 393 (1984). ¶ 35 Turning to the three Rules that are in the record, B4.6-B4.6.3, we find that the wording is so generic that even if they were an admission by the CTA that those three Rules exist, standing alone, they are little more than aspirational, and the court did not err in denying their admission into evidence.
¶ 36 III. Relevance
¶ 37 Plaintiff argues that the Rules were still improperly excluded because they were relevant. Plaintiff argues that the jury's questions "confirmed" the relevance of the Rules and the jury's confusion about them. However, the jury's questions were about the SOP's, not the Rules, and the SOP's were never introduced into evidence. Furthermore, even if the jury was confused about what to call them: SOP's or Rules, the questions themselves had nothing to do with what we believe to be the subject of Rule B-25, regarding elderly and/or disabled passengers or even the three Rules which were provided in discovery to the plaintiff and which are in the record which concerned the safe operation of the bus. The jury's note asked:
"We would like to know what CTA's SOP is regarding how often an operator must look in his mirrors within his bus and if that varies depending on his activity. We also want to see the CTA's SOP regarding what an operator is supposed to do in the event a passenger falls."¶ 38 The CTA replies that the Rules were properly excluded because they were irrelevant as they did not create any duty and that the jury's questions concerned only two very limited issues, which were unrelated to whether the CTA was negligent in the operation of the bus. The CTA further argues that plaintiff fails to demonstrate that the exclusion of this evidence substantially prejudiced her. ¶ 39 Plaintiff argues in her reply brief that, even if the Rules do not create any duty, they were still relevant evidence regarding negligence, pursuant to Pearl v. Chicago Transit Authority, 177 Ill. App. 3d 499, 500-02 (1988) and Bulger, and should have been admitted. ¶ 40 We reiterate that we cannot determine if excluding the entire set of Rules was an error because the entire set is not in the record. We do determine that, even if plaintiff had established a proper foundation and had established that the three Rules in the record were non-hearsay, the trial court did not abuse its discretion in barring the admission of the three Rules because they were not relevant. Relevant evidence means "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Ill. R. Evid. 401 (eff. Jan. 1, 2011). ¶ 41 We find that Bulger is both dispositive and does not support plaintiff's position for three reasons. First, Bulger establishes that the Rules lack the force of law and do not establish any duty. Bulger specifically held that internal CTA rules "lack the force of law and therefore should not have been *** considered by the jury in determining negligence." Bulger, 345 Ill. App. 3d at 119. This court in Bulger noted that the Illinois Supreme Court had indicated that "in order to have the force of law, standards or rules must be imposed by statute or promulgated by a regulatory body and must not be merely aspirational or suggestions." Bulger, 345 Ill. App. 3d at 119. " 'Where the law does not impose a duty, one will not generally be created by a defendant's rules or internal guidelines. Rather, it is the law which, in the end, must say what is legally required.' " Bulger, 345 Ill. App. 3d at 120 (quoting Rhodes v. Illinois Central Gulf R.R., 172 Ill. 2d 213, 238 (1996)). This court distinguished the Rules, which are guidelines for safety, with the statutory driving standards under the Illinois Vehicle Code, with which all drivers must comply. Bulger, 345 Ill. App. 3d at 121. This court concluded that "to equate these internal CTA rules with the force of law would be inappropriate." Bulger, 345 Ill. App. 3d at 121. Plaintiff provides no valid basis to distinguish Bulger and no valid argument for rejecting the holding of Bulger. ¶ 42 Second, Bulger does not support plaintiff's argument. The jury's questions to the court were focused on two very limited issues, which were unrelated to whether the CTA was negligent in the operation of the bus and clearly unrelated to the three Rules in the record. In arguing that the jury's questions to the trial court demonstrate that the Rules were relevant, plaintiff relies on language from Bulger allowing for "admission of evidence relevant to the operator's driving at the time of the accident." Bulger, 345 Ill. App. 3d at 125. But the jury asked only the following two questions: (1) what the CTA's standard operating procedure was "regarding how often an operator must look in his mirrors within the bus"; and (2) what the CTA's standard operating procedure was "regarding what an operator is supposed to do in the event a passenger falls." Neither of these questions pertained to the CTA bus driver's driving and/or braking at the time of the accident, which were alleged to have been the proximate cause of plaintiff's injuries and constituted the relevant issues. Further, since the SOP's were not introduced into evidence we cannot evaluate this claim as to the SOP's. ¶ 43 Third, because the three Rules that are in the record were generally about accelerating and braking gradually, with no specific length of bus/distance to stop/speed of bus calculation, and because the jury saw the video in which the brake light was on the entire time and in which they could have seen a jerking stop if it existed, the Rules could not have been relevant to any equation to calculate whether the braking was proper. Note, we are not saying that Rules can never be relevant. We are saying only that these three Rules in the record are not relevant in this case.
The Judge answered: "You have all the evidence in this case."
¶ 44 IV. Prejudice
¶ 45 Because we determine that the court did not abuse its discretion in excluding this evidence, we need not reach the issue of whether plaintiff suffered substantial prejudice. ¶ 46 However, even if we agreed that the three Rules were relevant, the plaintiff has not shown that she was substantially prejudiced by their exclusion. Plaintiff provided no explanation to support her claim of prejudice except that the jury found against her. Plaintiff provides a one sentence conclusory statement unsupported by any citations. That is not enough. See Wasloff v. Dever, 194 Ill. App. 3d 147, 156 (1990), and People ex rel. Aldworth v. Dutkanych, 112 Ill 2d 505, 511 (1986) (bare contentions that fail to cite any authority do not merit consideration on appeal). A party is not entitled to reversal based upon the trial court's evidentiary rulings unless the error substantially prejudiced the aggrieved party and affected the outcome of the case. Wilbourn v. Cavalenes, 398 Ill. App. 3d 837, 848 (2010) (citing Bosco v. Janowitz, 388 Ill. App. 3d 450, 462 (2009)). The party seeking reversal bears the burden of establishing [such] prejudice. Bosco, at 462; see also Kovera v. Envirite of Illinois, Inc., 2015 IL App (1st) 133049 ¶ 55. The jury heard testimony from the driver about braking procedures and conditions. It viewed the incident video. We cannot say that these three Rules would have provided the jury with necessary information that it did not already have about this incident. Therefore we cannot say that the court's decision to exclude these three Rules was prejudicial to the plaintiff.
B. Standard Operating Procedures
¶ 47 Plaintiff also claims the trial court erred in denying the admission of the CTA's Standard Operating Procedures. The record does not reflect any attempt by the plaintiff to introduce the SOP's into evidence. Therefore we need not analyze this question. ¶ 48 Affirmed.